Northern Ireland’s devolution settlement seems fragile again. In this post, Alan Whysall explains the constitutional framework and political background to the latest crisis. It provides factual background for our next two blogs on Northern Ireland, to be posted in the next two weeks.

Northern Ireland politics are largely split between Unionists-a majority, though smaller than previously, represented by the Democratic Unionist Party DUP) and the Ulster Unionist Party (UUP); and nationalists, represented by Sinn Fein and the Social Democratic and Labour Party (SDLP). These parties typically draw more than 80% of the vote, and are in the Northern Ireland Executive, along with the Alliance Party, which has support from both communities.

The devolution arrangements largely reflect the Good Friday (or Belfast) Agreement of 1998, given effect by the Northern Ireland Act 1998. But the Agreement is more than a devolution settlement. It provides for Northern Ireland’s constitutional status, in a way now very widely accepted, so that whether Northern Ireland is part of the UK or a United Ireland is a matter decided by a majority of people there voting in a poll. Opinion poll evidence suggests there is limited enthusiasm for change – even among Catholics, who are generally understood to be nationalist. The Agreement also make provision for structures for cooperation within the island of Ireland, and more widely, including the other devolved governments; a defined Irish role in Northern Ireland affairs; and rights protection.

The devolution arrangements embody the principle that they will only be effective if power is shared between both communities.

• Members of the Assembly (108 seats, elected by single transferable vote) designate themselves nationalist, unionist or ‘other’. Key votes need cross community support. Any 30 members can demand such a vote (this now has the unintended effect of giving the DUP a veto).

• The Executive is bicephalic: a First Minister (FM) and deputy First Minister (DFM) exercise equal powers, jointly, despite their different titles. The FM is now nominated by the largest party in the Assembly; the DFM by the largest party in the largest designation beside the FM’s: so at present there will always be a unionist and a nationalist.

• All parties of sufficient size are entitled to be in the Executive. Most ministerial posts are allocated by a formula (the d’Hondt mechanism) which yields an order in which they choose ministerial posts, providing overall for rough proportionality to party size. Only a party may remove its Minister (FM/DFM have no such power), and nominate a replacement. The Justice Minister post was thought too sensitive for these arrangements, and is filled by cross community election from the Assembly.

• Elections are held every five years, the next in May 2016-but the FM or DFM may provoke one at any time by resigning, unreplaced by their party.

Devolved government covering economic and social matters operated fitfully between 1999 and 2002. That autumn, revelations about continuing activity by the IRA, widely considered part of the same movement as Sinn Fein – who were in the Executive – provoked Unionist resignations: they argued the Agreement’s requirement that parties follow exclusively peaceful and democratic means had been violated. In the absence of cross-party government, direct rule was imposed by the British government (without further elections). This operated essentially as it had for 25 years up to 1999: the Secretary of State took control of the administration, and there was a special order making procedure at Westminster for Northern Ireland legislation.

Politics changed after 2002. The IRA, on ceasefire since 1997, declared its war over in 2005. An Independent Monitoring Commission was set up under the auspices of the British and Irish governments, with US representation, to report on paramilitary activity. The supposedly more moderate parties in each community, the UUP and SDLP, which had been the largest, were overtaken by the DUP and Sinn Fein; but these proved willing to work together, after some minor changes to the Agreement at the St Andrews conference in 2006. An acceptable framework for governance of policing, one of most difficult issues, was achieved through the creation of a Policing Board with cross-party representation.

Power was again devolved into 2007. Further instability emerged, not least over nationalist demands for devolution of responsibility for policing and justice. But when that was accomplished in 2010, there did appear to be a significant change; the DUP FM Peter Robinson and Sinn Féin DFM Martin McGuinness seemed publicly at least always in harmony; significant gestures of reconciliation were made; it seemed to many a new era had arrived; though it sometimes seemed difficult government decisions were ducked.

But in late 2012, there were further tensions. The first were over the old flashpoint issue of parading and its regulation – though few parades now raise the problems they did. Then matters became more serious over question, perhaps improbably so inflammatory to an outsider, of how many days the Union Flag should fly over the Belfast City Hall. The City Council, having lost its traditional Unionist majority, decided it should no longer fly daily, but only on those days prescribed in Great Britain, a position similar to that set out in law for buildings of the Northern Ireland Executive. The FM, under heavy pressure in his party and wider unionism, withdrew from almost all contact with the DFM, and serious street protest developed.

There was a partial return to normal business-under pressure from the British, Irish and indeed American governments, who were slowly drawn back to a more proactive role. Questions of parading and flags, and more generally dealing with the past, were remitted to an all-party group chaired by an American, Richard Haass. But his proposals failed to find agreement, nationalists supporting them, Unionists not.

And a further cause of instability arose. Devolution in Northern Ireland is wide-ranging, in part reflecting the pattern set when devolved government was first established in the 1920s, when few powers were reserved to Westminster. Unlike in Scotland and Wales, legislative and executive responsibility for welfare is devolved. The Treasury, however, has always funded it – as Annually Managed Expenditure – on the basis of parity with Great Britain. But nationalist parties proved unwilling to implement the last government’s welfare reforms – not least, it seemed, because Sinn Fein is campaigning on an anti-austerity platform in the Republic of Ireland, where elections will be held by next Spring. HMT deducted the extra costs from the Northern Ireland Block Grant, which put the budget balance under threat; exacerbated by significant overspends elsewhere, notably health.

Such discussion between the parties on these issues as there was broke down in summer 2014 over further disagreement on parading. By September, unionists joined nationalists in demanding government-convened talks.

The talks ended just before Christmas with the Stormont House Agreement. In fact not all parties recorded their formal agreement, but all seemed content at first to work it. Structures for dealing with the past were set out, to be taken forward in Westminster legislation; there was a timetable for taking forward parading and flags issues; small institutional changes featured. On welfare there was a package of measures funded by the Executive to supplement the new structure, for which the Assembly would legislate.

Sinn Fein did agree these steps. But in March 2015 it revoked its agreement on welfare, alleging it had been misled. No settlement of the issue was reached by the time the Assembly was due to vote a budget bill for the present financial year: it passed what some called a ‘fantasy budget’ before its summer recess, predicated on the assumption of agreement on welfare reform, giving a breathing space for negotiation. Some positive noises emerged about discussions between Sinn Fein and the DUP over the summer.

The temperature rose further when a former member of the IRA was killed in August. The police said the attack was committed by members of that organisation. The Chief Constable, clarifying that assessment, said ‘that the Provisional IRA does not exist for paramilitary purposes… some of the PIRA structure from the 1990s remains broadly in place, although its purpose has radically changed … [It] is committed to following a political path and is no longer engaged in terrorism… We have no information to suggest that violence, as seen in the murder… was sanctioned or directed at a senior level in the Republican movement’. The police questioned a senior Sinn Fein politician, said to have been a high-ranking officeholder in the IRA, about the murder, but he was released unconditionally.

This nevertheless led the UUP, raising questions about Sinn Fein’s good faith, to leave the Executive. Some said this was political positioning, ahead of the elections due next year. But the DUP felt obliged to react too. It asked for the suspension of devolution, that is reintroduction of direct rule, for a period of negotiation. The Government declined – unsurprisingly, since the consequences are potentially grave and new Westminster legislation would be necessary.

So until the situation was resolved, the FM ‘stood aside’ from that role and designated a member of his party, the Finance Minister Arlene Foster, to act in his place, an arrangement that can last six weeks – it was said she would act in only a ‘gatekeeper’ capacity; and announced the resignations of the other DUP ministers. The party was required to nominate replacements within seven days or the right to choose ministers would fall to another party under the d’ Hondt mechanism. At that point, it reappointed ministers; but the nominees, having taken office, and announced several decisions, resigned again, restarting the seven day clock.

Meanwhile the Government has said it would enact welfare reform at Westminster, if necessary, and it seems to have Opposition backing. There must though be questions about the Sewel Convention, since the issue is clearly devolved, and a Legislative Consent Motion in the Northern Ireland Assembly might well fail. And the Government announced the establishment of an assessment of paramilitary organisations. This led the Unionist parties to confirm attendance at all-party talks this week.

Time is short. The Executive collectively is not operating, some departments are effectively without ministerial control, and financial disarray looms. Politicians appear to stand very low in public regard. Persistent allegations of financial scandal among them exacerbate concerns. Some in Northern Ireland, including one of the leading regional papers, has called for a return of direct rule. Self-interest suggests that the parties will probably find a way of going on – unless politics runs out of control. But there is now clearly a profound dysfunction in the Northern Ireland Executive which is unlikely to be resolved by short-term agreement. Significant opportunities, but also challenges, will arise in the coming months.

About the Author

Alan Whysall has for most of the last 20 years been involved with the Northern Ireland peace process as a senior British civil servant in the Northern Ireland Office (with spells in the Cabinet Office in London). He left British Government in summer 2015 and is now Honorary Senior Research Associate at the Constitution Unit at University College London.